PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY FORM OUR AGREEMENT WITH YOU IN RELATION TO THE SERVICES:
These Terms and Conditions constitute a legal agreement between Expordite Ltd of 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ (Expordite, us or we) and you (Customer, you or your, for the Services, as these definitions are set out in these Terms and Conditions.
OPERATING SYSTEM REQUIREMENTS: The Services are accessible via all browsers and in all desktop and laptop.
You should print a copy of these Terms and Conditions for future reference.
1.1 The definitions and rules of interpretation in this condition apply in our agreement.
Agreement: the Quote and these Terms and Conditions.
Applicable Data Protection Laws:
(a) To the extent UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which UK is subject, which relates to the protection of personal data.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in condition 3.3.3.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in condition 11.1.
Customer, you or your: the person specified in the Quote and holder of the Economic Operators Registration and Identification (EORI) number in connection to which the Services will be provided.
(a) the data inputted by the Customer, Authorised Users, or Expordite on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services; and
(b) data generated by the Software as a result of the use of the Services by the Customer (but excluding analytics data relating to the use of the Software and server log files).
Documentation: the quote made available to the Customer by Expordite via email which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date our agreement comes into force as specified in condition 2.1.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679.
Initial Subscription Term: the initial term of this agreement in accordance with the Subscription Package purchased by the Customer following the procedure in condition 2.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Quote: as defined in condition 2.2.
Renewal Period: the period described in condition 14.1.
Services: the subscription services provided by Expordite to the Customer under this agreement via app.exporditeapp.co.uk or any other website notified to the Customer by Expordite from time to time, with reference to the Subscription Packages, as more particularly described in the Quote, and which, for the avoidance of doubt, include the Software.
Software: the online software applications provided by Expordite as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Expordite for the Services, as set out in the Quote.
Subscription Packages: the packages of services on offer from Expordite to prospective customers on app.exporditeapp.co.uk as amended from time to time.
Subscription Term: has the meaning given in condition 14.1 (being the Initial Subscription Term together with any subsequent Renewal Period(s)).
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force from time to time.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to writing or written includes email but not fax.
1.8 References to conditions and schedules are to the conditions and schedules of our agreement; references to paragraphs are to paragraphs of the relevant schedule to our agreement.
2.1 No contract will come into force between Expordite and the Customer unless and until Expordite issues the Quote and the Customer pays the Subscription Fees in accordance with the procedure detailed in this condition 2.
2.2 In order to enter into the agreement, the Customer must take the following steps:
(i) the Customer must decide which Subscription Package to select from the Subscription Packages menu in the Expordite website; (ii) the Customer must then express its interest with filling out the expression of interest form on Expordite’s website; (iii) Expordite will then draw up a quote which gives details of the services to be provided, the Subscription Package purchased and the Subscription Fees payable by the Customer (Quote) and will issue the invoice for the Subscription Fees for payment, which Expordite will send out to the Customer via email; (iv) by paying the invoice the Customer will confirm its acceptance of the Quote including acceptance of these Terms and Conditions; and (vi) once the payment has been received by Expordite the Customer will be given access to the Services at which point the Agreement will come into force (Effective Date).
3. CUSTOMER ACCOUNT
3.1 Expordite will make available the Services to the Customer by setting up an account for the Customer, and providing to the Customer login details for that account as soon as practicable following the Effective Date.
3.2 Subject to the restrictions set out in this condition 3 and the other terms and conditions of this agreement, Expordite hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
3.3 In relation to the Authorised Users, the Customer undertakes that:
3.3.1 the Services may only be used by the employees, agents and subcontractors of the Customer;
3.3.2 the Services must not be used at any point in time by more than one Authorised User;
3.3.3 Authorised Users shall keep the password for use of the Services secure and confidential and such password shall be changed no less frequently than 3 months;
3.3.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to Expordite within 5 Business Days of Expordite’s written request.
3.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.4.2 facilitates illegal activity;
3.4.3 depicts sexually explicit images;
3.4.4 promotes unlawful violence;
3.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.4.6 is otherwise illegal or causes damage or injury to any person or property;
and Expordite reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this condition.
3.5 The Customer shall not:
3.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
22.214.171.124 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and the Software and/or Documentation (as applicable) in any form or media or by any means; or
126.96.36.199 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.5.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.5.3 use the Services and/or Documentation to provide services to third parties; or
3.5.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
3.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this condition 3; or
3.5.6 introduce or permit the introduction of, any Virus into Expordite’s network and information systems.
3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Expordite in writing.
3.7 The rights provided under this condition 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1 Expordite shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2 Expordite shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 9.00 pm to 2.00 am UK time; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Expordite has used reasonable endeavours to give the Customer at least 3 Normal Business Hours’ notice in advance.
4.3 Expordite will as part of the Services provide the Customer with Expordite’s standard customer support services during Normal Business Hours.
5. DATA PROTECTION
5.1 For the purposes of this condition 5, the terms Commissioner, controller, data subject, personal data, personal data breach, processor and processing, shall have the meaning given to them in the UK GDPR, and supervisory authority shall have the meaning given to it in the EU GDPR.
5.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This condition 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
5.3 For the purposes of Applicable Data Protection Laws Expordite shall process the personal data as processor on behalf of the Customer.
5.4 Without prejudice to the generality of condition 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Expordite or lawful collection of the same by Expordite for the duration and purposes of this agreement.
5.5 Without prejudice to condition 5.2, Expordite shall, in relation to Customer Personal Data:
5.5.1 process that Customer Personal Data only on the documented instructions of the Customer, unless Expordite is required by Applicable Laws to otherwise process that Customer Personal Data. Where Expordite is relying on Applicable Laws as the basis for processing Customer Processor Data, Expordite shall promptly notify the Customer of this before performing the processing required by Applicable Laws unless those Applicable Laws prohibit Expordite from so notifying the Customer on important grounds of public interest. Expordite shall immediately inform the Customer if, in the opinion of Expordite, the instructions of the Customer infringe Applicable Data Protection Laws;
5.5.2 implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against its accidental loss, damage or destruction, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; ensure, and procure that that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
5.5.3 ensure that any personnel engaged and authorised by Expordite to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
5.5.4 assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Expordite), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.5.5 notify the Customer without undue delay after becoming aware of a personal data breach involving the Customer Personal Data;
5.5.6 at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless Expordite is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause Customer Personal Data shall be considered deleted where it is put beyond further use by Expordite; and
5.5.7 maintain records to demonstrate its compliance with this condition 5, and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.
5.6 The Customer provides its prior, general authorisation for Expordite to:
5.6.1 appoint processors to process the Customer Personal Data, provided that Expordite:
188.8.131.52 shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Expordite in this condition 5;
184.108.40.206 shall remain responsible for the acts and omissions of any such processor as if they were the acts and omissions of Expordite; and
220.127.116.11 shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Expordite’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Customer shall indemnify Expordite for any losses, damages, costs (including legal fees) and expenses suffered by Expordite in accommodating the objection.
5.6.2 transfer Customer Personal Data outside of the UK as required for the purpose of providing the Services, provided that Expordite shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Expordite, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
5.7 Expordite may, at any time on not less than 30 days’ notice, revise condition 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
6. THIRD PARTY PROVIDERS
7. EXPORDITE’S OBLIGATIONS
7.1 Expordite undertakes that the Services will be performed substantially in accordance with the agreement and with reasonable skill and care.
7.2 The undertaking at condition 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Expordite’s instructions, or modification or alteration of the Services by any party other than Expordite or Expordite’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Expordite will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in condition 7.1.
7.3.1 does not warrant that:
18.104.22.168 the Customer’s use of the Services will be uninterrupted or error-free; or
22.214.171.124 the Software or the Services will be free from Viruses.
7.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent Expordite from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.5 Expordite warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.6 Expordite shall follow legally compliant and commercially reasonable archiving procedures for Customer Data at all relevant times. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Expordite shall be for Expordite to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Expordite in accordance with its archiving procedures. Expordite shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Expordite to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
8.1.1 provide Expordite with:
126.96.36.199 all necessary co-operation in relation to this agreement; and
188.8.131.52 all necessary access to such information as may be required by Expordite;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services, including for the avoidance of doubt its EORI Number;
8.1.2 without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
8.1.3 carry out all other Customer responsibilities set out in the agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Expordite may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Expordite, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by Expordite from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Expordite’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data inputted by the Customer, Authorised Users, or Expordite on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
8.3 To the extent Customer Dara are owned or controlled by the Customer, the Customer hereby grants to Expordite a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of Expordite’s obligations and the exercise of Expordite’s rights under this agreement. The Customer also grants to Expordite the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this agreement.
8.4 The Customer warrants to Expordite that Customer Data inputted by the Customer, Authorised Users, or Expordite on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, when used by Expordite in accordance with this agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Subscription Fees to Expordite for the Services in accordance with this condition 9.
9.2 The Customer shall at all relevant times provide to Expordite, at Expordite’s absolute discretion, valid, up-to-date and complete credit card details or approved purchase order information acceptable to Expordite and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer is asked to provide:
9.2.1 its credit card details to Expordite, the Customer hereby authorises Expordite to bill such credit card:
184.108.40.206 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
220.127.116.11 subject to condition 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
9.2.2 its approved purchase order information to Expordite, Expordite shall invoice the Customer:
18.104.22.168 in accordance with condition 2.2 for the Subscription Fees payable in respect of the Initial Subscription Term; and
22.214.171.124 subject to condition 14.1, at least 5 Business Days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 5 Business Days after the date of such invoice.
9.3 If Expordite has not received payment within 5 Business Days after the due date, and without prejudice to any other rights and remedies of Expordite:
9.3.1 Expordite may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Expordite shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Expordite’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this agreement:
9.4.1 shall be payable in pounds sterling;
9.4.2 are, subject to condition 13.3.2, non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to Expordite’s invoice(s) at the appropriate rate.
9.5 Expordite shall be entitled to increase the Subscription Fees and any additional support fees payable on its Website such increase to take effect at the next Renewal Period.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that Expordite and/or its licensors own all intellectual property rights in the Services and the Documentation save for any such rights in Customer Data. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 With the exception of any Customer Data, Expordite confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:
11.1.1 any information that would be regarded as confidential by a reasonable business person relating to:
126.96.36.199 the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
188.8.131.52 the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
11.1.2 any information developed by the parties in the course of carrying out this agreement and the parties agree that:
184.108.40.206 details of the Services, and the results of any performance tests of the Services, shall constitute Expordite Confidential Information; and
220.127.116.11 Customer Data shall constitute Customer Confidential Information.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
11.2 The provisions of this condition shall not apply to any Confidential Information that:
11.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this condition);
11.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
11.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
11.2.4 the parties agree in writing is not confidential or may be disclosed; or
11.2.5 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
11.3 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
11.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
11.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this condition 11.
11.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
11.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
11.4.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this condition.
11.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this condition 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
11.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
11.8 On termination or expiry of this agreement, each party shall:
11.8.1 destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
11.8.2 erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
11.8.3 certify in writing to the other party that it has complied with the requirements of this condition, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this condition shall continue to apply to any such documents and materials retained by a recipient party.
12.1 The Customer shall defend, indemnify and hold harmless Expordite against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, including for the avoidance of doubt its obligations under condition 8, provided that:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 Expordite provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 Expordite shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 Expordite is given prompt notice of any such claim;
12.2.2 the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Expordite in the defence and settlement of such claim, at Expordite’s expense; and
12.2.3 Expordite is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Expordite may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Expordite, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services or Documentation by anyone other than Expordite; or
12.4.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Expordite; or
12.4.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Expordite or any appropriate authority.
The foregoing and condition 13.3.2 state the Customer’s sole and exclusive rights and remedies, and Expordite’s (including Expordite’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in this agreement:
13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Expordite shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Expordite by the Customer or third parties other than Expordite’s duly authorised contractors or agents in connection with the Services, or any actions taken by Expordite at the Customer’s direction;
13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
13.1.3 the Services and the Documentation are provided to the Customer on an “as is” basis; and
13.1.4 for the avoidance of doubt, nothing in this agreement, the Services or the Documentation, shall constitute or shall be taken as constituting professional legal advice and the Customer undertakes not to rely upon the same as such.
13.2 Nothing in this agreement excludes the liability of Expordite:
13.2.1 for death or personal injury caused by Expordite’s negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to condition 13.1 and condition 13.2:
13.3.1 Expordite shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
13.3.2 Expordite’s total aggregate liability in contract (including in respect of the indemnity at condition 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees payable over the Subscription Term.
Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Expordite’s Intellectual Property Rights.
14. TERM AND TERMINATION
14.1 This agreement shall, unless otherwise terminated as provided in this condition 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be renewed in accordance with his condition.
14.2 Expordite shall notify the Customer in writing 10 Business Days ahead of expiry of the Initial Subscription Term asking the Customer if it wishes to renew the Subscription Term accompanied by the relevant invoice.
14.3 Should the Customer wish to extend the Initial Subscription Term, either by purchasing the same Subscription Package or another Subscription Package, it shall either inform Expordite in writing for Expordite to issue an appropriate quote and invoice or pay the invoice issued for the following subscription term in accordance with the Subscription Package purchased (Renewal Period)). The same process shall be repeated towards the end of each successive Renewal Period.
14.4 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
14.4.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
14.4.2 the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
14.4.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
14.4.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.4.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
14.4.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.4.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
14.4.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
14.4.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.4.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
14.4.11 being an individual, a party is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has a county court administration order made against them under the County Court Act 1984;
14.4.12 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 14.4.3 to condition 14.2(j) (inclusive);
14.4.13 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.4.14 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
14.5 On termination of this agreement for any reason:
14.5.1 all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
14.5.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.5.3 Expordite may destroy or otherwise dispose of any of the Customer Data in its possession unless Expordite receives, no later than ten days after termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up copy of the Customer Data. Expordite shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Expordite in returning or disposing of Customer Data in advance; and
14.5.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. EVENTS OUTSIDE EXPORDITE’S CONTROL
15.1 Expordite shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.
15.2 An Event Outside Expordite’s Control means any act or event beyond Expordite’s reasonable control, including without limitation failure of public or private telecommunications networks.
15.3 If the period of delay or non-performance continues for 30 Business Days, the Customer may terminate this agreement by giving 30 Business Days written notice to Expordite.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Documentation, the provisions in the Documentation shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
19. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
20.2 If any provision or part-provision of this agreement is deemed deleted under condition 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. ENTIRE AGREEMENT
21.1 This agreement constitutes the entire agreement between us and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between us, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
22.1 The Customer shall not, without the prior written consent of Expordite, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 Expordite may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or, save as may be provided in the Documentation, authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
25.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
25.1.2 sent by email to the following addresses (or an address substituted in writing by the party to be served):
18.104.22.168 Expordite Ltd: 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ,
22.214.171.124 Customer: its address specified in the Quote, be it either its registered address or a business address.
25.2 Any notice shall be deemed to have been received:
25.2.1 if delivered by hand, at the time the notice is left at the proper address;
25.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
25.2.3 if sent by email, at the time of transmission or time of receipt, and, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
25.3 This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims)